The unduly harsh test in deportation cases has been subject to litigation for years and we have written about it in several articles, most recently in relation to the  Supreme Court case of HA (Iraq). The Court of Appeal has now published its judgment in Sicwebu v Secretary of State for the Home Department [2023] EWCA Civ 550, which looks at the test again and clarifies some of the implications of HA (Iraq).

Background

Mr Sicwebu is a South African national who has been living in the UK since 2004. He was granted indefinite leave to remain in 2006. In 2012, he married his British wife and they have three daughters together. Mr Sicwebu’s wife has several health conditions.

In 2017, Mr Sicwebu was convicted of assaulting a child and sentenced to 32 months’ imprisonment.

The Secretary of State first issue a deportation order in 2017 following the criminal conviction, which was unsuccessfully appealed. In 2019, the case came before the First-tier Tribunal again, after Mr Sicwebu made further representations in 2018. The appeal was allowed and the Tribunal found that deportation was incompatible with Article 8.

This judgment was appealed by the Secretary of State and, in 2020, the Upper Tribunal found that it would not be unduly harsh for the Mr Sicwebu’s wife and children to remain in the UK without him. Further permission to appeal was granted (on a limited basis) in 2022 and this case was heard by the Court of Appeal in April 2023.

In summary, the Court of Appeal was tasked with looking at whether the Upper Tribunal made an error of law in its application of the unduly harsh test, as set out in Section 117C (5) of the Nationality, Immigration and Asylum Act 2002. The test looks at both the “go scenario”, whether it would be unduly harsh for the partner and children to move to the country of origin with Mr Sicwebu, but also the “stay scenario”, whether it would be unduly harsh for the children and partner to remain in the UK without Mr Sicwebu’s. 

In the 2020 appeal in this case, the Upper Tribunal accepted that it would be unduly harsh for the Appellant’s wife and children to move to South Africa (especially considering the wife’s health conditions) but found that the “stay scenario” would not be unduly harsh, as the wife and children could cope in the UK without the Appellant.

The judgment

The Upper Tribunal made a number of material errors in 2020. The Court of Appeal clarified that, as set out in HA (Iraq), the unduly harsh test is highly fact sensitive and, when applying the test, a Court should assess all specific, relevant factors in the case.

On this basis, the Upper Tribunal judge failed to take into account some material factors. These mainly related to the impact that a permanent separation would have on the family, specifically looking at their circumstances. The judge failed to consider the impact that this would have on the oldest daughter, who had already been diagnosed with separation anxiety, but also on the Mr Sicwebu’s wife, considering her health issues and the fact that she was heavily pregnant with a third child at the time of the hearing.

The Upper Tribunal also failed to adequately consider and give weight to the expert evidence given by a psychologist relating to the impact the deportation would have on the oldest child. Interestingly, the Upper Tribunal judge was criticised by the court for making negative statements about the expert (suggesting that she had been criticised by the Tribunal in a previous case) without clarifying the basis for this or referring to relevant previous decisions.

Finally, the Tribunal made a material error of law as the judge compared the circumstances of the family, in the event of Mr Sicwebu being removed from the UK, to those of single parent families in the UK. In essence, the Upper Tribunal found that should Mr Sicwebu be deported, his wife and children would not be worse off than any single parent family in the UK able to cope without the support of social services. The Court of Appeal found that this was plainly wrong and referred to the Supreme Court judgment in HA Iraq which made it clear that, when applying the unduly harsh test, a court cannot adopt a notional comparator but should only look at the specific circumstances of the case in question.

On this basis, the Court of Appeal allowed the appeal and remitted the case to the Upper Tribunal for a further hearing.

Unduly harsh test is highly fact-sensitive

This is another important decision that clarifies the much-litigated unduly harsh test in deportation cases. Importantly, the court re-emphasised the importance of a holistic assessment to be carried out when applying this test, taking into account all relevant factors in the specific circumstances. The court also made it clear that the assessment cannot be carried out by comparing the circumstances of the case against a baseline of unduly harshness but that the specific circumstances of the case need to be evaluated to assess whether, in the particular case, it would be unduly harsh for a family to be permanently separated.